FLINT logo
Families Link International
Tel:0781 886 1724
home | issues | policies | family groups | courts | court reporters | research | law | contacts | donations| Useful Quotes |

Courts - Canada - Campbell

Citation: Campbell v. Campbell,
2003 BCCA 672
Date: 20031201

Docket: CA030371
Blair Alexander Campbell
Dawneen Lynn Campbell

Before: The Honourable Madam Justice Ryan
The Honourable Madam Justice Newbury
The Honourable Madam Justice Levine
Oral Reasons for Judgment
Appellant appearing in person
N. McKay Counsel for the Respondent
Place and Date of Hearing: Vancouver, British Columbia
November 26, 2003
Place and Date of Judgment: Vancouver, British Columbia
December 1, 2003

[1] NEWBURY, J.A.: Ms. Campbell appeals an order of Mr. Justice Groberman giving custody of the parties' two children, Jared (born 1995), and Geoffrey (born 1996), to their father, the respondent. The trial judge's order was made following a four-week trial in 2002, the focus of which was certain 'sexualized' behaviour of the children and an allegation made by Ms. Campbell that they had been sexually abused by Mr. Campbell. This allegation had been the subject of repeated tests, evaluations, and interventions by the relevant provincial authorities and medical 'experts'.
[2] At the end of the day, the trial judge found that neither party was "a saint" but that Ms. Campbell, who was the children's primary caregiver, had "seriously distorted" facts in order to denigrate Mr. Campbell. More importantly, he found that the complaints of sexual abuse to be groundless and that Ms. Campbell’s attitude towards Mr. Campbell ran contrary to the children’s best interests. In his analysis:
[16] I find that she undertook a concerted campaign to remove Blair from the children's lives, and that the campaign included a series of false allegations to professionals and the courts and generally successful attempts to make a restoration of the parent/child relationship between Blair and the two boys as difficult as possible. It is my view that her efforts have not been in the best interests of the children and, further that it is unlikely, if the children remain in the custody of Ms. Campbell, that the campaign will be ended.
[17] While I harbour some doubts on the matter, I am not prepared to find that Dawneen Campbell has acted solely out of spite or malice in undertaking this campaign. I am prepared to believe that she genuinely thinks it is in the children's best interests to be estranged from their father. I am even prepared to accept that Ms. Campbell genuinely believes at least some of the falsehoods that she has spread in the course of her campaign. Even, however, if Ms. Campbell's motives had been entirely pure, which I am not convinced that they have been, her distorted views of Mr. Campbell are incompatible with the children's best interests.
[17] In my opinion, the only way to foster solid relationships between the boys and both of their parents is to remove them from the custody of Ms. Campbell and place them in the custody of Mr. Campbell. I believe that it is in the boy's best interests to develop strong relations with both parents.
[3] On appeal, Ms. Campbell (who acted in person in this Court) has advanced several powerful arguments directed at the trial judge's findings of fact and inferences drawn therefrom. She submits that the trial judge failed to consider all the relevant criteria that make up the children's best interests, that he ignored evidence and gave "little priority" to their best interests, and that he "disregarded" the body of evidence regarding the sexual abuse allegations. With respect to the first two grounds, while the Reasons for Judgment were brief, it is apparent the trial judge did give prime importance to the question of the children's best interests. It was not necessary for him to review all the facts and criteria in detail in his reasons for judgment. As was stated by this Court in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637 (leave to appeal refused [2000] 1 S.C.R. vi), an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. There is no reasoned basis for believing the trial judge did so in this case. He found that both parents loved the children, and said that but for the allegations advanced by Ms. Campbell, he likely would have left them in her care. As I have said, however, he concluded that her "distorted views" of Mr. Campbell were incompatible with the children's best interests and that the boys needed to have the opportunity for developing "strong relations with both parents." If the children were left in Ms. Campbell’s custody, they would not have that opportunity.
[4] With respect to the "disclosures" of sexual abuse, the trial judge said he was convinced “beyond a reasonable doubt” that there was no substance to them. As well, he accepted the opinion of Dr. Bingen that Ms. Campbell had attempted to alienate the children from their father, and rejected the views of Dr. Boronowski, the general practitioner to whom the children were taken by Ms. Campbell. Dr. Boronowski was found to have become an "advocate" for the mother's views. In summary, the trial judge stated:
[28]… It is difficult to know if the children came up with any of these “disclosures” on their own. It is possible that they did say something, and were then encouraged by Dawneen to repeat their “disclosures” over and over again. It is also possible that Dawneen initiated the so-called disclosures by suggesting them to the children. It is impossible to know what the sequence of events was.
[29] At trial I was treated to Ms. Campbell's alleged documentation of the disclosures. It was evident to me that Ms. Campbell simply lied about the manner in which she recorded them, and even did a poor job of later fabricating documents, such that her two records of the disclosures did not match in terms of dates and content.
* * *
[34] I need not catalogue all the attempts by Ms. Campbell to alienate the children from Mr. Campbell. I have no doubt that she continued to encourage them to make disclosures of sexual improprieties involving their father and to denigrate him. I should say that, of course, these sexual improprieties are situations that I find never existed. She even went to extraordinary efforts to try and have his pilot's licence revoked on the basis of a concocted story about a head injury allegedly suffered by Mr. Campbell in his childhood.
[35] In respect of all these matters, I do not accept the explanations where they exist by Ms. Campbell. I find that she has on many occasions in the past exaggerated and fabricated evidence, including evidence before a court of law. Her credibility is severely shaken. In this context, I am also unable to accept her version of the event in which Mr. Campbell is alleged to have thrown skates at Dawneen and the children.
[5] Ms. Campbell made a strong argument to the effect that the removal of a child from his or her primary caregiver is a very serious and even unusual phenomenon, relying on the comments of L'Heureux-Dubé J. in Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 126-7. That case concerned the circumstances in which a custodial parent may be permitted to move away from the other parent's jurisdiction, making access to the non-custodial parent difficult or impossible. L'Heureux-Dubé J. was not speaking for the majority of the Court in Gordon v. Goertz. The majority commented on the concept of the best interests of the child as follows:
[20] The best interests of the child test has been characterized as "indeterminate" and "more useful as legal aspiration than as legal analysis": per Abella J.A. in MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament's view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child's best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child's best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions -- one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents.
[emphasis added]
This second factor, maximizing the child's contact with both parents, is of course what the trial judge found to be determinative in this case.
[6] It was also argued that the trial judge had erred in giving weight to an expert's report where the expert was, according to Ms. Campbell, not "impartial", his hiring "suspicious" and his methods not favoured by Ms. Campbell. But the weight to be given to the report was a matter for the trial judge. It was open for counsel for Ms. Campbell to advance, and it appears she did advance at trial, the same arguments Ms. Campbell put forward in this Court regarding the expert's report, methodology and reputation. At the end of the day, the trial judge gave what weight he thought appropriate to the opinion. It was certainly not error to rule that the witness was properly qualified as such or that his opinion was admissible. Thus no error of law or clear or palpable error of fact was shown in this regard.
[7] As counsel for Mr. Campbell contended, the Supreme Court of Canada has in recent years made it clear that a trial judge's findings of fact must be generally deferred to on appeal even where the custody of a child is in question: see Van de Perre v. Edwards, [2001] 2 S.C.R. 1014. In that case, this court had suggested that the best interests of the child "must prevail over those of the parties and of society in finality and that appellate courts must do more than rubber stamp trial judgments unless serious errors appear on their face." On appeal, the Supreme Court of Canada ruled that this was erroneous. Bastarache J. for the Supreme Court said this:
[13] ... the Court of Appeal was incorrect to imply that Hickey, [[1999] 2 S.C.R. 518], and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot be accepted. First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.
[14] It is clear from this case that it is necessary for this Court to state explicitly that the scope of appellate review does not change because of the type of case on appeal. The Court of Appeal discussed, and the respondents relied heavily on, the decision of McLachlin J. (as she then was) in Gordon v. Goertz, [1996] 2 S.C.R. 27. In that case, the Court found that the trial judge had only mentioned one factor to be considered in determining the best interests of the child. As noted by McLachlin J., there was no way of knowing if the trial judge had considered the other applicable factors. Further, the Court noted that the trial judge had stated that he was relying heavily upon the findings of another judge. As a result, McLachlin J. stated, at para. 52: ". . . one may equally infer that the necessary fresh inquiry was not fully undertaken. . . . [I]t seems clear that the trial judge failed to give sufficient weight to all relevant considerations . . . and it is therefore appropriate for this Court to review the decision and, should it find the conclusion unsupported on the evidence, vary the order accordingly." Rather than indicating that appellate review differs when a court must consider the best interests of the child, Gordon is consistent with the narrow scope of appellate review discussed later in Hickey, supra. The case does not suggest that appellate review is appropriate whenever a trial judge has failed to mention a relevant factor or to discuss a relevant factor in depth.
[15] As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.
[emphasis added.]
[8] In the case at bar, the central finding of the trial judge was that Ms. Campbell had undertaken a concerted campaign to remove their father from the children's lives and that if the mother had custody, it was likely she would disregard the children's interest in having a meaningful relationship with their father. Having read much of the evidence in this case, I cannot say that this conclusion was not supported by the evidence or that the trial judge must have ignored or misconceived evidence in reaching his conclusion.
[9] Last, I would not admit the fresh evidence proffered by Ms. Campbell with respect to the present condition of the children. (Mr. Campbell also proferred an affidavit in response, and both affidavits would have to come in if one came in, in my view.) The criteria for the admission of fresh evidence are well known: see Palmer v. R. [1980] 1 SCR 759. Since this evidence would not have had a decisive effect on the appeal, those criteria were not met here.
[10] In the result, I would dismiss the appeal.
[11] RYAN, J.A.: I agree.
[12] LEVINE, J.A.: I agree.
[13] RYAN, J.A.: The appeal is dismissed.

”The Honourable Madam Justice Newbury”


The contents on these pages are provided as information only. No responsibility or liability is accepted by or on behalf of FLINT for any errors, omissions, or misleading statements on these pages, or any site to which these pages connect, whether provided by FLINT or by any organisation, company or individual. No mention of any organisation, company or individual, whether on these pages or on other sites to which these pages are linked, shall imply any approval or warranty as to the standing and capability of any such organisations, companies or individuals on the part of FLINT. All rights reserved.